Joseph v. Elmwood Medical Center

715 So. 2d 703, 98 La.App. 5 Cir. 115, 1998 La. App. LEXIS 1684, 1998 WL 344499
CourtLouisiana Court of Appeal
DecidedJune 30, 1998
DocketNo. 98-CA-115
StatusPublished
Cited by2 cases

This text of 715 So. 2d 703 (Joseph v. Elmwood Medical Center) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joseph v. Elmwood Medical Center, 715 So. 2d 703, 98 La.App. 5 Cir. 115, 1998 La. App. LEXIS 1684, 1998 WL 344499 (La. Ct. App. 1998).

Opinion

| iWICKER, Judge.

This appeal arises from a worker’s compensation claim filed on behalf of Joan R. Joseph (Joseph), plaintiff/appellee, against her employer, Elmwood Medical Center (Elmwood), defendant/appellant. Joseph alleged she suffered an asthma attack arising out of her exposure to cleaning fluid while in the course and scope of her employment. Elmwood denied the asthma was work related. , The trial judge awarded temporary total disability benefits (TTD) from the date of the injury, January 19, 1995, until present at the rate of $106.00 per week; full medical benefits and’costs related to her condition, and penalties and attorney’s fees. Elmwood now appeals. We affirm in part, amend in part, and remand.

Elmwood specifies the following errors on appeal:

1. Elmwood is not liable for worker’s compensation benefits or medical expenses because plaintiff had an asthma attack due to her preexisting asthma condition;
2. In the event this court affirms the trial court’s decision on liability, then the period of time that temporary total disability benefits were awarded by the trial court was incorrect, and
3. Elmwood should not be held liable for penalties and attorney’s fees when this claim for worker’s compensation and medical expenses was reasonably controverted based on the medical reports.

|2PREEXISTING CONDITION:

On January 19, 1995 Joseph was employed in the housekeeping department at Elm-wood Medical Center. She was in the process of cleaning a bathroom with “Go Getter” cleanser. Shortly thereafter she began experiencing breathing difficulty. She testified Joe Pierre (Pierre), who was employed by the respiratory department, gave her an inhaler. She used the inhaler [705]*705and brought it with her to the emergency room of the hospital. Dr. Jacqueline Kirby, the emergency room physician, testified Joseph was in respiratory distress necessitating hospitalization. Joseph was placed in the intensive care unit. Hospital records indicate Joseph was discharged from the hospital on January 25,1995 with the diagnosis of asthma. .

Dr. Kirby stated she took a history from Joseph which indicated preexisting asthma and asthma treatment. Although Joseph testified she was unable to talk at the time due to breathing difficulty, Dr. Kirby related that Joseph provided her with a history. However, Dr. Kirby admitted she may not have made contemporaneous notations but instead may have made notes of the history approximately one hour later. She explained that Joseph needed emergency treatment and that she could have made notes = after treating Joseph.

Dr. Leonard Glade treated Joseph during her hospitalization at Elmwood. He wrote in his notes that Joseph had a history of asthma and asthma treatment for several years. He also wrote Joseph was followed by her gynecologist. The records of Dr. Pamela K. Branning, Joseph’s gynecologist, were introduced. These records are devoid of any notation of asthma or asthma treatment.

The trial judge concluded the notation that Joseph had preexisting asthma was incorrect in view of Joseph’s denial of previously having asthma. Furthermore, none of the prior medical records introduced at trial indicated treatment for asthma. The trial judge reasoned it was probable that the physicians assumed Joseph had preexisting asthma when she came to the emergency room with an inhaler.

Joseph was hospitalized- a second time for asthma at Lakeland Medical Center. Hospital records indicated she was admitted on April 11, 1995 and discharged on April 17, 1995. Dr. Robert Larimer’s discharge summary states that Joseph complained of acute onset of shortness of breath which began on the evening prior to her admission. However, there is ^another notation in the hospital record which states that Joseph’s asthma attack began at 9:00 P.M. the same night as her admission on April 11, 1995. Joseph testified the attack began after work the date she -sought treatment 'at Lakeland Medical Center.

Dr." Robert Larimer’s report states that she was hospitalized earlier that year at Elm-wood “for exacerbation of asthma which was her first admission ...” There is a notation in the record of the hospital that she has a history of asthma. However, by the date of her admission to Lakeland she had a history of hospitalization at Elmwood for asthma.

Dr, Robert Crosby’s report of a history and physical taken April 11, 1995 show an inconsistency. His report states “She was hospitalized for about a week or so in January of this year at Elmwood Medical Center and she says this admission was for an exacerbation of asthma.” Dr. Crosby’s report also states that Joseph was on Ventolin Inhaler' and Motrin “which she was given recently.” Therefore, although Dr. Crosby’s notes suggest a history of asthma prior to her first hospitalization, the report only refers to treatment with medication “recently” rather than for several years.

The trial judge considered the inconsistencies in the medical records, the absence of any indication in prior medical records of treatment for asthma, and Joseph’s testimony denying a prior history of asthma. Joseph’s application for employment with Elm-wood was also devoid of any mention by her of a history of asthma. The trial judge made a credibility determination in attaching greater weight to Joseph’s testimony. “[Gjreat deference is accorded to the trial court’s factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court’s judgment.” Shephard on Behalf of Shepard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1-308, 1316. We find no manifest error in the trial judge’s conclusion Joseph did. not have a history of asthma or asthma treatment prior to January 19,1995.

Appellant argues it was significant that the medical records of the two hospitalizations carry no notation of chemical exposure. The trial judge evidently attached little weight to [706]*706the absence of any notation in that regard. The trial judge explained:

... claimant testified clearly, concisely and credibly as to the cause, onset and continuing disability she suffers. Records submitted regarding subsequent attacks support claimant’s testimony as to the onset and causality, as well as to the degree of ^disability.

Appellant argues Pierre would not have given an inhaler to Joseph without medical authorization since the inhaler was a prescription medication. However, Joseph testified an unidentified woman also came to her aid along with Pierre. The trial* judge evidently refused to give any weight to the speculation that Pierre lacked medical authorization. Instead, the trial judge gave Joseph’s testimony denying prior treatment greater weight than any speculation.

With regard to causation, we find no manifest error. This court explained in Banks v. Jefferson Parish School Bd., 95-779 (La.App. 5th Cir. 2/14/96), 670 So.2d 1284, 1287:

A claimant in a worker’s compensation proceeding initially has the burden of establishing disability and its causal relation with the employment accident by a preponderance of the evidence. Walton v. Normandy Village Homes Ass’n., Inc., 475 So.2d 320, 324 (La.1985).

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715 So. 2d 703, 98 La.App. 5 Cir. 115, 1998 La. App. LEXIS 1684, 1998 WL 344499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-elmwood-medical-center-lactapp-1998.